Intellectual Property Law and Issues Emerging During UNCTAD14

I had a very interesting afternoon today. I attended the side event being hosted by HEVA Fund in partnership with UNCTAD14, HIVOS, UNDP, USAID and FORUM SYD. Having been an active lawyer in the Kenyan creative economy for close to 6 years now, I am a little surprised that we are still tackling issues of lack of awareness and legal counsel. I am not saying there has not been progress. There has been some good progress in terms of intellectual property management. However, the progress has been at a very slow pace, which worries me because playing catch up is not the easiest or smoothest of ways to deal. One of our greatest weaknesses, we are yet to have a National Intellectual Property Policy (It has been working progress for the last five or so years).

Today’s forum was talking about finance and the creative economy. In my view, it is is essential to talk about intellectual property law and management issues to achieve financial success. The solid ground on which the creative economy finds it’s standing is intellectual property; creations of the mind. In order to secure intellectual property assets we need to fully understand and utilise intellectual property laws and best practices. Making the starting point a legal premise.

I tend to sound like a broken record when I say that Intellectual property law does not protect ideas but the expression of it. WE DO NOT “PATENT” IDEAS WE PROTECT IDEAS. A patent is a form of protection of an intellectual property asset on grounds of newness, novelty and industrial applicability. The other regimes of securing one’s intellectual property in the creative sector are registration of Copyright, Trademarks and Industrial Designs and to some extent Patents and Utility Models (Petty Patents). Registration is key to confirm and assert ownership simply because two or more people can have the same “idea” but the first in time to register and use this “idea” is the ultimate beneficiary. Like I say time and time again “Your intellectual property is your shamba. Go on and get that title deed (registration certificate).

Now, these registrations do not work in isolation. Contracts play a key role in the dealings around intellectual property asset transactions. One needs to be aware of their rights, the nature of the transaction and the intricate IP issues. For example, if you are licensing, the extent to which you have relinquished your control needs to be clear for both parties on a particular deal. If you have commissioned works or have been commissioned as an artist, are you aware of the terms of a work for hire arrangement? Do you know that such transactions need to be on writing in a clear and concise manner? Raising LPOs (Local Purchase Orders) are not enough to address intellectual property issues in creative economy transactions. They tend to leave the creatives short changes and could be troublesome to those paying those LPOs on the same note. Why are we afraid of contracts?

The statement, often made, that “There aren’t many IP lawyers in Kenya” is quite untrue. Google is your friend, ladies and gentlemen. Oh, and there is LSK online too. Please utilise this tool. At the click of a button, you have access to loads of information. In addition, government institutions like the Kenya Copyright Board (KECOBO) and Kenya Industrial Property Institute (KIPI) have been very proactive in the last three to four years in hosting legal sensitization forms. Same goes with private institutions like Bloggers Association of Kenya, Craft Afrika, Creatives Garage, Performers Rights Society of Kenya (PRISK) among others. Most of these forums are poorly attended, despite having large numbers of RSVPs. I could give numerous examples. Perhaps there is something they are not doing right?

In my assessment, for the creative economy to move away form the “woiye” (take pity) space, we need to take ourselves seriously and handle our businesses like investments. Let us stop the “hobby” mentality. It has been rather detrimental in my professional experience. I say, if you are not in it to make a name, an empire and some money, please do not do it. You are wasting and killing opportunities for the serious bees in the creative industry. “Hobbysim” has led to delayed business decision making which in some instances have led to serious legal repercussions. For example you need to engage the court for an injunction to stop someone from using your intellectual property, that is a decision that needs to be made as soon as you are aware of potential infringement. Do not wait until the last minute to move the court. Things tend not to go your way at the last minute. This is just but one example.

When we embrace some of these legal and intellectual property law issues, only then can we talk about intellectual property as collateral. Kenya among other African countries are still lagging behind in this area. Some of the factors that are taken into account to realise IP as collateral include, registration of the relevant intellectual property, contracts and licenses safeguarding transactions relating to this IP and IP Valuation based on the transactions you have engaged in with your IP and how well you have asserted your intellectual property rights in infringement matters. Also,the business registrations and compliance matters are also taken into consideration. It starts with the creative-preneurs so that other institutions can invest in the creative economy.

How do we get everyone to appreciate IP? It needs to start at an early level. IP Policies are not a need for tertiary institutions alone, but also primary and secondary schools need to recognize IP and establish internal IP policies. Parents too need to be aware and proactive on IP matters. As you raise a genius, you need to have a clue on how to help them best manage their intellect.

In conclusion, as we sing about how there is no money in the industry, remember that collaboration and team work goes a long way. If properly documented and captured. I am not talking about the so called “gentleman’s agreement” but proper contracts. When money starts rolling in, the friendships tend to suffer in the absence of clear contracts. Engage professionals (lawyers, marketers etc) and listen to their professional advice and counsel. There is a reason why they are important in the creative economy chain. Stop playing “man-solo” games. It takes a team to build an empire. Do not wait to get your fingers burnt so that you heed to professional advise. Sometimes the lesson is very costly and could kill a business or a reputation. We all know that reputation is key to be a successful entrepreneur. Once it’s ruined where does one start?

To those keen on investing in the creative economy, please move away from the “grant” and “donation” based systems and move toward loaning facilities so that creatives can sustain themselves by working harder and smarter. I was really glad when one of the audience members shared this concern. This practice has spoiled us rotten and interfered with sustainability. Don’t give a child fish, teach them how to fish. We also need to create monitoring and evaluation business tools for creative economy businesses.

According to a UNESCO 2013 report,the creative economy has a global market value of USD 1.6 Trillion. Kenya needs realise it’s contribution fast before the fat lady sigs. Intellectual property has the shelf life of a banana.